Congress tries to quiet loud commercials . . . again

If at first you don’t succeed, try, try again. That appears to be the motto of Rep. Anna Eshoo, who has re-introduced the Commercial Advertisement Loudness Mitigation Act (H.R. 1084). (She introduced an identical bill last term as well; it went nowhere.)  The House Subcommittee on Communications, Technology, and the Internet is holding a hearing on the bill on June 11.

If enacted, her bill would require the FCC to prescribe regulations to assure that: (a) ads accompanying video programming (from broadcasters and/or MVPDs) not be “excessively noisy or strident”, and (b) ads not be “presented at modulation levels substantially higher” than the programming they accompany; and (c) the “average maximum loudness” of ads not be “substantially higher” than the “average maximum loudness” of the accompanying programming.

This isn’t the first time the government has tried to chase down this particular wild goose.

Putting aside the obvious observation that her proposals are a bit shy on necessary definitions of important terms – how should we define “strident” or “excessively noisy”, for example? – we are constrained to note that Rep. Eshoo appears not to be aware that the FCC has already struggled with the issue of loud commercials, unsuccessfully, for nearly 50 years. In 1962, the FCC commenced an inquiry into that very question. (Check it out – Docket No. 14904, 27 Fed. Reg. 12681 (December 21, 1962).) After three years of fact-finding, though, that inquiry was terminated “with little new information gained”. Between 1965-1973, the FCC conducted spot surveys to determine whether any broadcasters were deliberately jacking up their levels during spots – but no such evidence was found.

In 1979 the FCC opened yet another inquiry into the subject. (You can look that one up, too – BC Docket No. 79-168, 44 Fed. Reg. 40532 (July 11, 1979).) After five more years of tests, public comments, industry studies, etc., etc., the FCC concluded that “due to the subjective nature of many of the factors that contribute to loudness, it would be virtually impossible to craft new regulations that would be effective.” The FCC observed that “loudness” includes many factors, such as “audio processing, mood of the listener, listener’s experience with the product being advertised, and method of presentation.”

It appears that Rep. Eshoo eschewed a look back at the record before she introduced her bill. Or perhaps she has been able to ferret out information that decades of FCC efforts failed to – although one could not tell that from her bill. Ideally, this item will die a non-strident death – as it did last year – leaving the Commission free for more useful and fruitful activities.